Alimony Reduction

Talk to a Local Family Law Attorney

If you’ve gone through a divorce in New Jersey and the court has
ordered alimony in your case, you may be wondering if it’s possible to
change (“modify”) the order. If you can show that circumstances have
changed since the original order, a court might increase, decrease or
end (“terminate”) payments.

Modification by Type of Alimony

Modifiability
depends on the type of alimony, and whether or not the original order
(or your separation agreement) contained any conditions limiting
modification. If the alimony is modifiable and the court is convinced
that circumstances have changed, it will hold a full hearing on need and
ability to pay, taking into account all the relevant circumstances just
as in an original alimony decision.

New Jersey courts can award five types of alimony – all of which will end automatically if either spouse dies.

Temporary alimony (“alimony pendente lite”).
This is paid during a divorce proceeding and stays in effect only until
the divorce is final. It’s always modifiable based on a change of
circumstances.

Permanent alimony. Permanent
support helps a lower-earning spouse maintain the standard of living
established during a long-term marriage. It ends automatically if the
supported spouse remarries, and it’s always modifiable based on a change
of circumstances.

Durational alimony. Just as
its name suggests, this has a predetermined ending date. It serves the
same purpose as permanent alimony, but is used after a shorter marriage
and ends if the supported spouse remarries. Durational support is
modifiable based on a change in circumstances. Typically, courts will
only modify the amount, not the duration. A court may also revise
durational and rehabilitative support (see below) if a specific
condition fails to happen; for example, if the supported spouse agrees
to complete a particular educational program and then drops out before
finishing.

Rehabilitative alimony. This has a set
term and is intended to help a dependent spouse complete training or
education necessary to become self-supporting. Rehabilitative alimony is
modifiable under some conditions, and a court can even change it to
durational or permanent alimony at a later date.

Reimbursement alimony.
This requires one spouse to pay the other back for any financial
contributions related to higher education or advanced job training; and
is not ordinarily modifiable, since it’s considered payment of a debt.

Change in Circumstances

Changes
in circumstances must be substantial and on-going. This means that
ordinarily a court won’t modify support unless the change has been in
effect for at least several months and is likely to continue
indefinitely. Some circumstances that might justify a modification
include:

an increase in either spouse’s income

an involuntary decrease in either spouse’s income

an increase in the supported spouse’s costs of living

an increase in the financial obligations of the paying spouse, or

cohabitation (living together) with a new partner.

Increase in Income

A
significant increase in the supported spouse’s income might call for a
downward modification while a significant increase in the paying
spouse’s income might call for an upward modification. In either case,
the primary issue will be how much alimony the supported spouse needs.

Even
with the help of alimony payments, a supported or “dependent” spouse
usually has to reduce expenses after divorce. If the paying spouse’s
income increases after divorce, the dependent spouse may be entitled to
additional support, but only to the extent necessary to meet the marital
standard of living.

Similarly, if a supported spouse’s income
goes up, but not enough to meet the marital standard of living, a judge
won’t reduce payments. Determining the marital standard of living is
usually done as part of the original divorce case; if it wasn’t, a full
hearing on the issue may be necessary as part of the modification
decision.

Decrease in Income

A paying spouse’s decrease in
income could justify a reduction of support, while a supported spouse’s
decrease in income (or failure to become fully employed within a
certain period of time) could justify an increase.

The key
question will be whether or not the decrease in income happened in “good
faith”–meaning it wasn't voluntary or for the purpose of avoiding an
obligation to pay alimony or become self-supporting. The following are
common situations involving a decrease in income.

Job Loss.
A paying spouse can’t just quit a job or switch to a lower paying
career to avoid alimony, and a supported spouse must make an effort to
become self-supporting before a court will consider an increase. A
spouse who’s laid off from a job, or fails to become fully employed,
must file an updated Case Information Statement (CIS) with supporting
documents showing a long-term decrease in actual and anticipated income and
submit proof of efforts to find work, such as an updated resume, and a
log showing job contacts, interviews, and other job-hunting activities.

Disability.
If the decrease in income is due to an illness or disability that
developed after the original alimony order, a court will ordinarily
require medical records and either a formal determination of disability
(such as a social security or workers’ compensation decision) or a
vocational evaluator's opinion supporting the inability to work.

Retirement.
Retirement at the age of 65 or older is generally considered a
reasonable basis to reduce support. It’s much harder to get a
modification based on retirement before age 65; however, if the paying
spouse shows the decision to retire early was reasonable, and the
benefits of early retirement outweigh any detriment to the supported
spouse, a court may grant the request. Such requests pose special
challenges as the paying spouse must actually retire before a court will
hear the case.

Increase in Supported Spouse’s Costs of Living

Costs
of living tend to increase over time due to inflation and other
factors. In some cases alimony orders include a built-in “COLA” (cost of
living adjustment). If there was no COLA, or if unanticipated factors
have led the supported spouse’s cost of living to increase
substantially, a modification could be appropriate.

Increase in Paying Spouses Financial Obligations

An
increase in a paying spouse’s financial obligations can only rarely be
grounds for modification. A court won’t consider any obligation that the
payer takes on voluntarily, because the pre-existing alimony obligation
takes priority. For example, a decision to remarry is voluntary and not
a basis for modification. In some cases, the birth or legal adoption of
a child might indirectly affect alimony payments, because it will
justify a recalculation of child support.

Cohabitation of the Supported Spouse

In
New Jersey, if an alimony recipient moves in with a new romantic
partner, the court won’t automatically terminate support, but will
consider a modification. The court will first look at the relationship
to determine how similar it is to a marriage, taking into account the
couple’s living arrangements and the degree to which they’re sharing
expenses, bank accounts, household responsibilities, and social
activities. The relationship must be serious and long-lasting. While no
specific duration is required, a court isn’t likely to modify alimony
based on a relationship of only a few months.

Even when a court
finds a cohabitation relationship is similar to a marriage, it won’t
modify support unless the cohabitation has a financial effect on the
supported spouse’s needs. For example, if the supported spouse suddenly
has excess income (and a lower need for alimony) because the live-in
partner is covering household expenses, the court is likely to reduce
support. A court can also order a reduction if the supported spouse is
using alimony payments to support a new partner.